JUDGMENT : B. Panigrahi, J. - The State has come up in appeal against the order of acquittal of the Respondents of the charge under Sections 302 and 201, read with Section 34, of the Indian Penal Code (for short, "Indian Penal Code") passed by the learned Sessions Judge, Sundargarh, in S.T No. 195 of 1986. 2. The prosecution story, as revealed from the Trial Court's judgment, is as follows: On 14.5.1986 both the Respondents and the deceased Junas Soreng went together to catch fish in Sindhni-tanger Bhanga Munda Bundh (water reservoir). Before going to catch fish, all of them consumed liquor with burnt fish under a Sal tree near the water reservoir. In a state of intoxication, they quarrelled among themselves. The deceased being an old man was over-powered by the Respondents who assaulted him to death. P.W. 2. Durjodhan Majhi claimed to have seen the incident as by then he had been to the water reservoir to take his bath and also to catch fish. The Respondents, however, threatened P.W. 2 that if he revealed the incident before anybody else, he would also be assaulted, so he went away. When they were asked by the family members of the deceased about his whereabouts, they gave some evasive replies. Subsequently, the dead body of the deceased was found floating on the water of the reservoir. Therefore, an information was lodged at the police-station. Initially, a station diary entry was made, on the basis of which a U.D. case was registered. Later on, it was converted into a case under Sections 302 and 201 read with Section 34, Indian Penal Code. The Respondents were arrested and investigation proceeded, on completion of which charge-sheet was submitted against them. 3. In order to sustain the conviction against the Respondents, prosecution had examined fifteen witnesses. Mainly, the evidence of P.W. 2 was pressed into service as he had claimed to have seen the Respondents giving fist blows to the deceased and strangulating him. The learned Sessions Judge has however, found his evidence incredible inasmuch as he had not disclosed about the incident either before the police or before any other villager for a period of ten days. It is not known under what circumstances he maintained stoic silence for so many days and thereafter abruptly implicated the Respondents. The learned Sessions Judge has however, found his evidence incredible inasmuch as he had not disclosed about the incident either before the police or before any other villager for a period of ten days. It is not known under what circumstances he maintained stoic silence for so many days and thereafter abruptly implicated the Respondents. It was his duty to report to the police when he witnessed a heinous offence like murder. He having not done so, his evidence has been rightly rejected by the learned Sessions Judge. 4. The prosecution then relied on the theory of last seen together. In this connection P. Ws. 1, 5 and 6 have stated that the deceased went in the company of the Respondents to catch fish in the reservoir but never returned again. It is well settled that the fact that the deceased was last seen in the company of the Respondents cannot be the sole ground to convict them in absence of any other materials. The Respondents have also stated in their statement recorded u/s 313, Code of Criminal Procedure that they had been to the water reservoir for catching fish, but the deceased slipped into the water and got drowned. To determine the truth or otherwise of this statement, we were taken through the evidence of P.W. 4, the doctor who conducted post-mortem examination. P.W. 4 has stated that by the time of post-mortem examination, the dead body was in a highly decomposed state and therefore, it was not possible to determine whether the death was homicidal or by drowning. He was also not sure as to whether the injuries found on the dead body were ante-mortem or post-mortem in nature. Though P.W. 2 has stated that the Respondents had strangulated the neck of the deceased, it is strange that no such injury was noticed by P.W. 4. Thus, from the evidence of P.W. 4, it could not be gathered for a moment that the death of the deceased was homicidal. Therefore, the possibility of his death by drowning cannot be ruled out. 5. Recovery of the napkin of the deceased at the instance of Respondent Kashmira was also pressed into service by the prosecution. Thus, from the evidence of P.W. 4, it could not be gathered for a moment that the death of the deceased was homicidal. Therefore, the possibility of his death by drowning cannot be ruled out. 5. Recovery of the napkin of the deceased at the instance of Respondent Kashmira was also pressed into service by the prosecution. The learned Sessions Judge, however, did not attach any importance to such recovery inasmuch as such napkin was never used as the weapon of offence and therefore cannot be used as an incriminating material against the Respondents. 6. After carefully going through the evidence on record and considering the facts and circumstances of the case, we are not in a position to disagree with the observations of the learned Sessions Judge while acquitting the Respondents. The Government Appeal has no merit and the same is accordingly dismissed. The order of acquittal passed by the learned Sessions Judge is hereby affirmed. Ch. P.K. Misra, J. 7. I agree. Final Result : Dismissed